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95 N.Y.U. L. Rev. Online 1 (2020)

handle is hein.journals/nyulro95 and id is 1 raw text is: 









        ADVERSE EMPLOYMENT ACTIONS IN
 FAILURE-TO-ACCOMMODATE CLAIMS: MUCH
                   ADO ABOUT NOTHING

                      NICOLE  BUONOCORE PORTER*

    This Article addresses a circuit split in the disability law jurisprudence. Under the
    Americans with Disabilities Act (ADA), employees generally bring two types of claims
    against their employers discrimination claims and failure-to-accommodate claims.
    Succeeding on a discrimination claim requires proving that the employee suffered an
    adverse employment action. Succeeding on a failure-to-accommodate claim does not. But
    several courts including a recent case in the Tenth Circuit have added this adverse-
    employment-action requirement into failure-to-accommodate claims. In doing so, these
    courts have camouflaged important issues about an employer's obligation to provide a
    reasonable accommodation to disabled employees. Although I believe that courts that
    require an adverse employment action in failure-to-accommodates claim do so in error,
    the main contribution of this Article is to reveal how courts have obscured and confused
    broader disability-accommodation issues by imposing that requirement.


INTRODUCTION   ......................................................................................2
   I.  THE TENTH  CIRCUIT'S  DECISION  IN EXBY-STOLLEY...............4
   II. THE CIRCUIT  SPLIT .....................................................................7
       A.  Cases Requiring  an Adverse Employment   Action...............8
       B.  Cases Not Requiring  an Adverse Employment   Action ......12
  III. EXPLAINING  THE  CONFUSION...................................................14
       A.  Whether  a Requested Accommodation   Is Reasonable  and
           Required ............................................................................15
           1. Accommodations That Are Not Necessary to Perform
               the Essential Functions of the Job...............................15
           2. No  Obligation to Provide the Plaintiff's Preferred
              Accommodation ...........................................................17
       B.  Whether  the Employer Violated the Accommodation
           Obligation .........................................................................21
           1. Delay  in Providing Reasonable Accommodation........21
           2. Dispute  over Whether the Employer  Provided a
              Reasonable  Accommodation .......................................22
       C.  Causation and  Intent in Failure-to-Accommodate
           Claims  ...............................................................................23
CONCLUSION .......................................................................................26

   * Copyright © 2020 by Nicole Buonocore Porter, Professor of Law, University of Toledo
College of Law.

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